The Intolerable Co-Worker

by David McCarthy

We get a remarkable number of calls from persons who have inflated notions of "hostile environment harassment." Usually the caller is new to the job in question and the complaint is that a co-worker is curt, abrupt, abrasive, indifferent, quarrelsome, and on and on. Eventually the term "hostile environment" enters the conversation. Invariably the caller displays an unduly broad (and erroneous) notion of "hostile environment harassment."

It began 24 years ago when the U.S. Supreme Court expanded to scope of gender-based harassment from the so-called quid pro quo variety to the "hostile environment" variety. In order for the "hostile environment" to be actionable it must have the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment and it must be connected to one of the forms of discrimination that is prohibited, e.g., race, sex, national origin, age, disability.

Quite recently a caller who had been let go after fewer than 60 days on the job had just received from EEOC (Equal Employment Opportunity Commission) her right to sue letter and a notice that, after investigation, EEOC was unable to conclude that the caller had been the victim of workplace discrimination. She brought her charges on a theory of race-based discrimination, and it soon became clear why: Both of the "villains" in her story were women. One was a supervisor and the chief complaint as to her was that she refused to take sides in an ongoing, low-grade clash between the caller and a co-worker with whom the caller did not get along.

From what was described to me, I concluded that the conduct complained of did not rise beyond a clash of personalities. Apparently EEOC had reached much the same conclusion after a long investigation. The caller was free to go to the next step, that is, file suit; but the wisdom of doing so in light of the tepid conclusions of the achingly-sensitive EEOC was far from clear.

Can Blogging Get You Fired?

by David McCarthy

Can blogging about your job or your boss get you fired?

Absolutely.

Illinois is an at-will State. Either party to the employment relationship can end it at any time for any reason.

By and by exceptions have emerged as to the right of the employer to end the employment relationship. To fire someone after she has complained of discrimination because of race, sex, age, or disability is to run the risk of liability for "retaliatory discharge."

As for blogging about the job or the boss, it is tempting to suppose that the constitutional guarantees of free speech diminish or eliminate the right of the employer to fire the blogger. But it is not so.

First, the constitutions regulate only the relationships between individuals and the national and state governments, not the relationships between individuals and private employers.

Second, the Illinois Supreme Court has expressly rejected the proposition that a claim for retaliatory discharge can be grounded on free speech. There is an exception when the free speech is of the "whistleblower" variety.

Otherwise, you can blog to your heart's content and no judge will prohibit it. But you take what comes, and if a "pink slip" is what comes, you might as well put all your attention on looking for a new job because you are going nowhere with a claim of retaliatory discharge.

Counties with Personalities: It Matters Where You File

by David McCarthy

The conventional wisdom as to personal injury cases in Chicagoland is that plaintiffs want to avoid DuPage and get into Cook County whenever possible and defendants want to avoid Cook County and get into DuPage County.

The conventional wisdom has it that the jury pools in DuPage County are conservative and will demand that a plaintiff prove her case, and particularly establish that the damages she requests of the jury are fully justified. On the other hand, the thinking as to jury pools in Cook County is that they start with the premise, "We've got to give this poor plaintiff something" and the only question is how much?

We speak specifically about DuPage County because it is widely regarded as the most conservative of the 102 counties in the State. Cook County is considered among the most liberal, along with Madison and St. Claire Counties over on the Mississippi River.
 
The above discussion might suggest that a plaintiff can file a lawsuit anywhere she wants to. Not true.

The general rule is that the suit must be filed in the county where the defendant resides or where some part of the transaction took place. A corporation "resides" in any county in which it has an office or regularly transacts business. Out-of-state defendants can be sued in any Illinois county.

Great Strides Fundraiser

Thanks to everyone who contributed to the cystic fibrosis Great Strides annual walk today.

 "Team McLenighan" raised over $400.00!

David and Pat McCarthy

More About the Work-At-Will Rule

Illinois is a work-at-will state. My advice to prospective clients who have just lost their jobs invariably begins with the proposition that the employment relationship is terminable at will by either party (employer or employee) at any time for any reason or for no reason.

Virtually all the action in employment law over the last 40 years has been in the development of exceptions to the general rule that the employer can terminate the employment relationship whenever it wants to.

Quite recently we received a query from an individual who had lost his long-time job with a national retailer after he was late reporting back to work from a trip overseas that was unrelated to his employment.

He had developed quite a good case to show that he had a good excuse for not getting back to work on time. But he was unable to identify any situation, circumstance or event which - in his case - diminished or eliminated the right of his employer to terminate the employment relationship.

Even if he had reported back to work exactly when and where required, his employer was nevertheless free to terminate the relationship. There are indeed situations in which an employer’s decision to end the employment relationship can fairly be challenged (e.g. discrimination on the basis of age, race, sex, disability).

In the case under discussion here, there was the faintest hint of discrimination on the basis of national origin, but my invitation to him to tell me more about that point went unaccepted.

All this presupposes that the employee does not have a contract for a specified period of time. If the employee does have a contract for employment for a specified period of time and the employer terminates the employement relationship before the period has expired, the termination may be (and often is) actionable on a basic, common law breach-of-contract theory.

DO I HAVE A RIGHT TO REVIEW MY PERSONNEL FILE?

By David McCarthy

Yes.
Current employees and some former employees are entitled to see their personnel file and to make a copy of it by authority of the Personnel Records Review Act, 820 ILCS 40/0.01 et seq. The question is often put by someone who has just been fired, and the right of access survives for one year following termination of the employment relationship.)

In general the employer must produce the file within seven working days of receiving a request therefor, and may not charge more for copies than the actual cost of the copies. Small employers (fewer than five employees) are not bound by the statute, and the statute does not require an employer of any size to maintain personnel records.

There is a right to correct the record.

It hardly needs saying that when the employer and the employee concur that the record is erroneous, it can be corrected by removal of the offending material, or otherwise, as they mutually agree.

What if they disagree?

In that instance, the employee is entitled to submit a written statement of his or her position, which must be attached to that part of the record it takes issue with, and any time the disputed portion is produced to a third party, the employee's position paper must be produced as well.

Records pertaining to disciplinary action may not as a rule be produced to third parties unless the employee has been notified. The employer must examine the file before producing it to third parties and must in most instances delete information about disciplinary matters that are more than four years old.

Do you get to see everything?

No.

Letters of reference are not subject to production. The same is true for personal information about someone other than the employee in question and for records pertinent to a criminal investigation.

BAILEY HOBSON HOUSE

This rather glum-looking gentleman was an early pioneer settler of Naperville and is frequently called the "Founding Father of DuPage County."

Bailey Hobson and I have something in common.

The old stone building in front of my office was built between 1845 and 1847 as the home for this man's son, John Hobson. I have called the structure behind the old stone building my home away from home for the best part of 20 years. The Hobsons resided in the building somewhere around 49 years.

Besides the Hobsons, various colorful occupants have lived in the old building over the years. From 1894 to 1910 it was used to board both horses and their trainers. Gambling was a favorite past time of the trainers and sometimes there were differences of opinion. The bullet holes found in the original front door are thought to date from this time.

In 1979 the Law Offices of Cellucci and Yacobellis purchased the old stone building and under their ownership the building has flourished. I'm happy to report that although there have been quite a few heated discussions in the building, no additional shots have been fired since the horses and trainers vacated the premises.

In 1988 a red brick addition was built behind the stone house creating an attractive space for professional offices. Next time you're in the office check out the interior design. The fireplace, staircase, doors, bookcases, and moldings were removed from a monastery in Oconomowoc, Wisconsin and masterfully installed throughout the addition.

I'm just speculating, but I think Bailey Hobson would be impressed.